Citation Nr: 9821652
Decision Date: 07/16/98 Archive Date: 07/23/98
DOCKET NO. 93-13 309 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an evaluation in excess of 10 percent for
right knee disability characterized as a torn posterior
cruciate ligament.
REPRESENTATION
Appellant represented by: Kenneth B. Mason, Jr.,
Attorney at Law
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
J. Johnston, Counsel
INTRODUCTION
The veteran had active service from August 1978 to March
1988.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 1992 rating decision of the
Newark, New Jersey, Department of Veterans Affairs (VA)
Regional Office (RO). The veteran has moved to Florida and
the RO in St. Petersburg, Florida, currently has jurisdiction
of the veteran’s case.
In February 1995, the Board remanded this claim for an
increased evaluation for additional evidentiary development
including a VA examination. Following completion of the
development, the RO again denied an increased evaluation in
January 1996 and the Board did likewise in a June 1996
decision.
REMAND
Pursuant to a joint motion for remand entered into by
veteran's counsel and VA General Counsel, the United States
Court of Veterans Appeals (Court) vacated the June 1996 Board
decision and granted the parties joint motion to remand the
case. The essential basis for the joint motion for remand
was that the most recent September 1995 VA examination of the
veteran's right knee failed to indicate any comprehensive
review of the veteran's entire claims folder including
private medical records of Dr. Berkowitz, or the veteran's
complaints of "pain on use" and the fact that the physician's
examination report did not include comments regarding pain or
the absence thereof in the examination and manipulation of
the service-connected right knee. It was also noted that the
Board did not mention or adequately address the provisions of
38 C.F.R. §§ 4.40 and 4.45 as required in the case of
DeLuca v. Brown, 8 Vet. App. 202 (1995) in its June 1996
opinion.
The provisions of 38 C.F.R. § 4.40 (1997) require that in
evaluating disability of the musculoskeletal system,
consideration must be given to functional loss, including
functional loss due to pain. That regulation provides that
weakness is as important as limitation of motion, and a part
which becomes painful on use must be regarded as seriously
disabled. Additionally, 38 C.F.R. § 4.45 (1997) provides
that evaluation of a knee, which is considered to be a major
joint, must include inquiry as to whether there is less
movement than normal, more movement than normal, weakened
movement, excess fatigability, incoordination, impaired
ability to execute skilled movements smoothly, pain on
movement, swelling, deformity or atrophy of disuse,
instability of station, disturbance of locomotion,
interference with sitting, standing and weight bearing.
The Court has held that the Board cannot rely on a VA medical
examination which fails to address the existence and extent
of pain, or to adequately portray the extent of functional
loss due to pain. See Voyles v. Brown, 5 Vet. App. 451, 453
(1993). In light of these guidelines, the Board finds that a
contemporaneous and comprehensive examination of the
appellant's right knee is necessary to assist in addressing
the factors of disability set forth in 38 C.F.R. §§ 4.40 and
4.45.
It is essential that a VA examination clearly identify the
veteran's functional range of motion, that is, motion he can
achieve without pain. Finally, the Court has clearly held
that when a diagnostic code provides for compensation based
upon limitation of motion, the provisions of 38 C.F.R.
§§ 4.40 and 4.45 must also be considered, and that
examinations upon which the rating decisions are based must
adequately portray the extent of functional loss due to pain
"on use or due to flare-ups" as discussed in DeLuca v. Brown,
8 Vet. App. 202, 205-07 (1995).
Additionally, while X-ray evidence on file so far reveals no
significant degenerative changes, the Board notes that VA
General Counsel, in an opinion dated July 1, 1997 (VAOPGCPREC
23-97), held that a claimant who had arthritis and
instability of the knee may be rated separately under
38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5257. General
Counsel said that when a knee disorder is already rated under
Diagnostic Code 5257, the veteran must also have limitation
of motion which at least meets the criteria for a zero-
percent rating under Diagnostic Code 5260 or 5261 in order to
obtain a separate rating for arthritis.
Accordingly, this case is REMANDED for the following
development:
1. With the veteran's assistance and
consent where necessary, copies of all
records of private treatment for the
veteran's right knee which are not
already on file should be obtained for
inclusion in the claims folder.
Additionally, copies of records of the
veteran's right knee treatment with VA
which are not already on file should also
be included in the claims folder for
review.
2. The veteran has testified that his
right knee disability interferes with his
employment as a correctional officer and
that he took Motrin for knee pain about
three times weekly. The veteran should
be requested to obtain a copy of his
employment personnel records regarding
sick time taken as a result of his right
knee disability. Together with a copy of
this record, the veteran should submit a
statement indicating the amount of sick
time taken solely as a result of his
right knee problem as opposed to other
medical reasons.
3. The RO should arrange for a VA
examination to determine the nature and
severity of all impairment caused by the
veteran's service-connected right knee
disability (it is noted that service
connection was actually granted for a
torn posterior cruciate ligament). The
claims folder and a complete copy of this
remand (not just this action paragraph)
must be provided to the examiner for
review in conjunction with the examina-
tion and the report of examination must
indicate that the VA physician reviewed
the evidence on file including pertinent
private medical records. All testing or
special studies found necessary,
including X-ray studies, should be
performed. In addition to providing a
comprehensive report as to all present
symptoms regarding the veteran's right
knee disability, the examiner must
specifically address the existence and
degree of pain and the degree of any
functional loss due to pain on use or
during flare-ups (if claimed). The
examiner should record pertinent
complaints, symptoms, and clinical
findings, including all ranges of motion
of the right knee. The functional range
of motion, that is, that motion which the
veteran can achieve without pain for the
right knee should also be clearly
reported. Alternatively, ranges of
motion which are painful should be
accurately described. The examiner
should also comment on the presence or
absence of less movement than normal,
more movement than normal, instability,
weakened movement, excess fatigability,
incoordination, muscle atrophy, and swel-
ling. The examiner should describe any
functional loss due to pain, weakness, or
other symptoms attributable to right knee
pathology, as well as all objective
evidence of those symptoms. In addition,
the examiner should provide an opinion on
the degree of any functional loss that is
likely to result from a flare-up of
symptoms or on extended use. The
examiner should also document, to the
extent possible, the frequency and
duration of exacerbations of symptoms.
The examiner should also state whether or
not there is arthritis of the right knee
and should offer an opinion as to the
likelihood that it is related to the
service-connected torn posterior cruciate
ligament.
4. Thereafter, the case should be
reviewed by the RO. If the VA
examination report does not comply with
the requirements of Paragraph 3, it must
be returned for corrective action.
Consideration must be accorded to the
provisions of 38 C.F.R. §§ 4.40 and 4.45
as well as the case of DeLuca v. Brown,
8 Vet. App. 202 (1995). The rating
should also reflect that consideration
was given to all possibly applicable
diagnostic codes for evaluating the
veteran's right knee disability and that
consideration was given to assigning
separate ratings for arthritis and
instability of the knee under Diagnostic
Codes 5003 and 5257. If the decision
remains adverse, the appellant and his
representative should be provided with a
supplemental statement of the case and
provided an opportunity to respond. The
case should then be returned to the Board
for further appellate consideration.
The veteran need do nothing until further notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
GARY L. GICK
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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